Citation Nr: 1511002
Decision Date: 03/16/15 Archive Date: 03/27/15
DOCKET NO. 10-29 774 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois
THE ISSUES
1. Entitlement to service connection for bilateral hearing loss.
2. Entitlement to service connection for tinnitus.
3. Entitlement to service connection for an acoustic neuroma.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
L. Zobrist, Associate Counsel
INTRODUCTION
The appellant is a Veteran who served on active duty from December 1966 to December 1969. The matters of service connection for bilateral hearing loss and tinnitus are before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Chicago, Illinois, Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in November 2012 and December 2013, when they were remanded (by a Veterans Law Judge other than the undersigned) for additional development. In the December 2013 remand decision, the Board determined that the claim seeking service connection for bilateral hearing loss reasonably encompassed a claim of service connection for acoustic neuroma, and recharacterized the issues accordingly. The case has been reassigned to the undersigned.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action on his part is required.
REMAND
The Board is well aware these matters were remanded twice before (and regrets the delay in final adjudication that is inherent with a remand). Nonetheless, because there has not been substantial compliance with the previous remand instructions, another remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998). (Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance.)
The Board's December 2013 remand included instruction that the VA examiner providing an addendum opinion comment specifically on research study abstracts, submitted by the Veteran, that supported his contention that the (conceded) noise exposure trauma experienced in service caused his acoustic neuroma (and possibly, by extension, his hearing loss and tinnitus). The examiner stated that the abstracts were not reviewed, conducted her own review of the literature, and opined that "[t]here is no hard evidence supporting a link between environmental factors and acoustic neuromas." As the (scholarly) abstracts submitted by the Veteran appear to contradict the examiner's conclusion, the Board concludes that the opinion provided by the examiner is inadequate with respect to its assessment of the scholarly literature and does not satisfy the prior remand instructions.
Additionally, the examiner was asked to clarify her comments that the Veteran did not experience "acoustic trauma" during service (in light of conceded noise exposure during service) and to comment on the lay statement by the Veteran's brother regarding the Veteran's complaints of tinnitus and diminished hearing acuity since service. The examiner did not clarify her comments and, in an additional addendum opinion, commented broadly on tinnitus only (with respect to complaints of continuity of symptomatology), and did not address the brother's lay statements.
As the examiner did not address several of the significant questions upon which the prior remand was based, the Board finds that there has not been substantial compliance with the prior remand directives; remand for an additional examination that addresses these factors is required. Additionally, the Board notes that the VA examiner appeared to associate the Veteran's right ear hearing loss and tinnitus with a right ear acoustic neuroma. However, the Veteran had symptoms of hearing loss/tinnitus in both ears prior to the diagnosis of an acoustic neuroma. On remand, the examiner should clearly address the etiology of the hearing loss/tinnitus symptoms in both ears.
Also, it appears that the Veteran's acoustic neuroma was treated on a fee-basis at a non-VA facility (Barnes Hospital). Records of such treatment have not been associated with his file. Those records are potentially pertinent to the claim, and must be sought on remand.
Accordingly, the case is REMANDED for the following:
1. The AOJ should ask the Veteran to provide releases for VA to obtain records of his private treatment (specifically Barnes Hospital) for acoustic neuroma. The AOJ should secure complete records from the providers identified. If the records are unavailable, the Veteran should be so notified. If he authorizes release of records, but the provider in question does not respond to AOJ's request, he should be advised that ultimately it is his responsibility to ensure that private records are received.
2. The AOJ should then arrange for an audiological evaluation of the Veteran (with audiometric studies) by an audiologist or otologist other than the January/June 2014 examiner to determine the nature and likely etiology of the Veteran's acoustic neuroma, bilateral hearing loss, and tinnitus. The Veteran's entire record must be reviewed by the examiner in conjunction with the examination. The examiner must be provided copies of the study abstracts submitted by the Veteran and address them in the opinion provided.
Based on review of the record, and examination of the Veteran, the examiner should provide an opinion that responds to the following:
(a) Is the Veteran's acoustic neuroma at least as likely as not (a 50% or better probability) related to service, to as due to conceded exposure to noise in service? If the study abstracts (or other medical literature) do not support a nexus between acoustic neuromas/vestibular schwannomas and noise exposure, the examiner should provide a detailed rationale for that conclusion.
(b) If the Veteran's acoustic neuroma is found to be related to his service, is it at least as likely as not that it caused/aggravated his hearing loss (in either ear) or tinnitus?
(c) If the Veteran's acoustic neuroma is found to not be related to his service or did not cause/aggravate his hearing loss/tinnitus, is it at least as likely as not (a 50% or better probability) that his hearing loss or tinnitus (which were noted prior to the diagnosis of acoustic neuroma) are related to his service/exposure to noise trauma therein? If not, please identify the etiological factor(s) deemed more likely. The examiner should comment specifically on the (conceded) noise exposure during service, the Veteran's lay statements alleging onset during service, and his brother's statement noting observed symptoms after the Veteran's separation from service.
The examiner must explain the rationale for all opinions.
3. The AOJ should then review the record and readjudicate the claims. If any remain denied, the AOJ should issue an appropriate supplemental statement of the case and afford the appellant the opportunity to respond. The case should then be returned to the Board.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).